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SOURCES OF LAW

Shad Saleem Faruqi

Concept of Law in Legal Philosophy

Law is an indispensable attribute of every society, ancient or modern. It has existed since times
immemorial in myriad forms. There is no universal concept of law. There are many competing
conceptions. Much depends on your upbringing, pre-conceptions and political and legal philosophy.
An all-encompassing definition is not possible. But if we were forced to supply one, we could say that
law is “a norm or rule of conduct”.

The problem is that rules of conduct exist in many forms and originate from a myriad of sources.

 In early history, almost all law was in the form of custom.


 Later in history, religion began to direct human conduct. Is religion within the definition of
law?
 Concepts of morality, ethics and justice evolved. These concepts in turn developed rich
subdivisions. For example, ‘morality’ can refer to ‘conventional morality’, ‘contemporary
morality’, ‘social morality’ etc. ‘Justice’ can mean ‘legal justice’, ‘corrective justice’,
‘distributive justice’ etc. Are morality, ethics and justice entitled to the nomenclature of
law?
 In the 16th century the concept of political sovereignty developed. The state took shape. It
began to enact formal, positive law. The agencies of government acquired a near monopoly
over the making of enacted law.
 Despite the proliferation of state made law, a great deal of social, commercial, banking, and
business practice is regulated by social, business and professional practices. Should social
practices be recognized as law by the courts, as the sociological jurists recommend us to
do?
 In common law systems much of the law is judge made. Should judicial precedents be
regarded as binding? The common law and civil systems differ sharply.
 Relationships at home, in school and college, in the work place, in the club, business
association and political party are mostly regulated by the private law of contract. Is
‘private law’ within the definition of law.
 In a globalizing world, the norms of international conduct are acquiring the status of law in
many lands.
Which of the above sources or forms of law qualify as legal sources? There is no right answer.
Much depends on whether you belong to the historical and anthropological, natural law, legal
positivist, sociological, realist or post-modernist approach.

Malaysian Concept of Law

In Malaysia, Article 160(2) of the Federal Constitution supplies an authoritative definition of law.
It states that “law” includes written law, the common law in so far as it is in operation in the
Federation or any part thereof, and any custom or usage having the force of law in the
Federation or any part thereof. From the above definition, it is clear that at least three categories
of rules qualify as law in this country:

(i) Written law. This category includes the Federal Constitution, Acts of the Federal Parliament,
Emergency Ordinances by the Yang di-Pertuan Agong under Article 150, Federal Subsidiary
Legislation, 13 State Constitutions, Enactments and Ordinances of State Assemblies, State
Subsidiary Legislation and local authority bye-laws. In the context of Sabah and Sarawak, British
statutes at cut off dates may be applied as law if there is no local legislation. In the field of
commercial law, British statutes at cut off dates may be applied throughout the country if there
is no local legislation.

(ii) English common law and Malaysian judicial precedents. Unlike in the civil law system, judicial
precedents formulated by Malaysian and UK judges in the course of deciding cases have the
force of law and are honoured by a system of stare decisis.

(iii) Customs or usages. These become law if recognised by statute or common law.

It is noteworthy that under Article 160(2) religion, ethics, morality and custom are not law per se
on their own strength or quality. Neither is there legal recognition for social practices, rules of
international law and private law unless these are incorporated into or derived from a recognized
source of law. Our legal system does not address the question whether an unjust law (“a lawless
law”) is law?

However, religion, ethics, morality, custom, social practices, rules of international law and private
law may be admitted into law in two ways: (i) by incorporation, adoption or being posited into a
written statute or (ii) by acceptance into a judicial precedent.

This narrow, unhistorical and amoral (morally neutral) approach to the definition of law indicates
that in Malaysia the English philosophy of “legal positivism” is the preferred approach. Law is a
command of the sovereign. Law is state made. Other types of rules or norms need direct or
indirect recognition by the state or it agencies before they acquire the status of law and
enforceability as a legal norm.
Only those rules of social and legal practice are enforceable in a court which have passed through
a “legal filter”, a “rule of recognition” or a “criterion of validity”.1

In practice statutory recognition of custom or religious precepts is quite frequent. In West


Malaysia it is quite common to see Muslim family law statutes containing a clause to the effect
that “the law on this point shall be the law of the Syafie school of Islam and Malay adat”. In
Sabah and Sarawak a great deal of native custom is codified.

Though judicial practice is not always consistent, there is no dearth of cases in which judges give
judicial recognition to Malay and Chinese customs and native law in Sabah and Sarawak. Since
the nineties, superior courts are increasingly incorporating principles of Islamic jurisprudence
into their judicial decisions.

Meaning of ‘Sources’

The term “sources of law” can have many meanings. One meaning is “historical sources” or
“material sources”. These terms refer to the fountains from which the content of the law is
derived. Everywhere in the world, some parts of the legal system are inspired by and based on
cultural, moral, religious or customary norms, scholarly opinions or the edicts of religious or
customary authorities. These norms supply the lifeblood of the law; the clay from which law is
fashioned. But in legal systems influenced by the approach of legal positivism, these historical
or material sources are not, by themselves, entitled to be called “law” unless they are formally
posited or converted into law by legislation or judicial precedent.

Another meaning of “source” is the institutions or authorities that are authorized by a


particular legal system as having the power to enact law. Thus, Parliament and State assemblies
are the source of legislation. The Yang di-Pertuan Agong is the source of Emergency
Ordinances; and courts are the source of common law.

A third meaning is those formal categories or species of rules that are recognized in the legal
system as constituting the law of the land.

Sources of Law in Malaysia

The Federal Constitution in Article 160(2) defines ‘law’ to include three sources:

1
H L A Hart, The Concept of Law, ELBS, 1961, esp. ch VI on “Rule of Recognition and Legal validity”, pp. 97-106.
(i) written law, (ii) the common law and (iii) any custom having the force of law. This means that
legislation, subsidiary legislation, judicial precedents and recognized customs are the “source of
law” in Malaysia.

Under the Civil Law Act 1956, British common law and equity on particular cut-off dates are
statutorily recognised as sources of law.

Under the Civil Law Act, British statutes in the field of commercial law on cut-off dates are
applicable throughout Malaysia if suitable to our circumstances. Also, British statutes of general
application on cut-off dates, if suitable for Sabah and Sarawak, are applicable in Sabah and
Sarawak.

Under Article 162(6), “existing laws” of the pre-independence era may continue to exist but
subject to modification to make them fall in line with the supreme Constitution.

The effect of the above provisions is that there are multiple sources of law in Malaysia. They
can be divisible broadly into: (i) written sources and (ii) unwritten sources.

Written Sources

“Written” means formally “enacted” into legislation or subsidiary legislation. Written does not
mean “in print” or in black and white. The written sources at the federal level are:

1. Federal Constitution.
2. Federal statutes or Acts of Parliament under Articles 73-79 of the Federal Constitution.
3. Emergency Ordinances by the Yang di-Pertuan Agong under Article 150.
4. Federal subsidiary legislation.
5. In the field of commercial law, British statutes at cut off dates may be applied throughout
Malaysia if there is no local legislation and if the British law is suitable to our circumstances.
6. To these could be added “existing law” or pre-Merdeka law under Article 162.

At the state level, the written sources are:

7. The thirteen State Constitutions;


8. State Enactments (in Sarawak, Ordinances) under Articles 73, 74, 76A and 77 of the Federal
Constitution or under the enabling provisions of their own State Constitutions;
9. State subsidiary legislation including municipal bye-laws.
10. In the context of Sabah and Sarawak, British statutes of general application at cut-off dates
may be applied if there is no local legislation and if the law is suitable to our circumstances.
Unwritten sources

These are all of non-statutory origin. They are divisible into legal and non-legal sources.

11. British common law and equity at cut off dates. This is a legal but unwritten source.
12. Judicial precedents of superior courts in Malaysia. These are a legal but unwritten source.
13. Principles of the Syariah. These are part of our corpus juris (body of law) in three different
ways: (i) They may have been “posited” into a Syariah Enactment in which they are part of
written, statutory law. (ii) They may have been incorporated into a judicial decision in which
case they are part of unwritten law. (iii) They may not have been incorporated into a statute
or a judicial decision but nevertheless exert an influence on administrative decision-making.
For example the behavior of NRD in the Bin Abdullah case in which the NRD defied a statute
and a Court of Appeal judicial decision and followed a non-binding fatwa.
14. Customary law including Malay adat,
15. Native practices in Sabah and Sarawak,
16. Chinese and Hindu customs (unless incorporated into a written law or judicial precedent),
17. Conventions of the Constitution,
18. International law (unless incorporated into a written law or judicial precedent), and quasi
legislation in the form of Government Circulars, Schemes, Directions and Policy Statements.
19. Quasi-legislation

1. FEDERAL CONSTITUTION
The Federal Constitution is the supreme law of the land, the law of laws, the grundnorm. It sits
at the apex of our legal hierarchy. What was achieved by Marbury v Madison in the USA is
explicitly provided for in Articles 4, 128 and 162(6) of Malaysia’s Federal Constitution. Any law,
whether post-Merdeka or pre-Merdeka, primary or secondary, federal or state, secular or
religious, that violates the Constitution can be declared null and void by the courts.

The supremacy of our Constitution is supported by judicial review. The Constitution in Articles
4(1), 4(3), 4(4), 128(1) and 128(2) is explicit about the power of the superior courts to examine
the constitutionality of all executive2 and legislative actions. As in many other countries,
Malaysian courts are reluctant to employ the instrument of unconstitutionality to dissect state
actions. Nevertheless, a fair amount of case law has developed on constitutional challenges.

In the area of federal-state division of powers we have The Government of Kelantan v The
Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj (1963) 29 MLJ
2
Persatuan Aliran v Minister [1988] 1 MLJ 442; Arunamari Plantations v Lembaga Minyak Sawit [2011] 1 MLJ 705;
Berjaya Books v Jawi [2014] 1 MLJ 138; ZI Publications v Selangor [2016] 1 MLJ 153;
355; The City Council of George Town v The Government of the State of Penang [1967] 1 MLJ
169; Government of Malaysia v Government of the State of Kelantan [1968] 1 MLJ 129; Mamat
Daud v Government of Malaysia [1988] 1 MLJ 119; Abdul Karim Abdul Ghani v Legislative
Assembly of Sabah [1988] 1 MLJ 171; Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek
[1997] 3 MLJ 23; Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741; Dato’ Ting
Cheuk Sii v Datuk Hj Muhammad Tufail Mahmud [2009] 1 CLJ 899; and Fung Fon Chen@
Bernard v The Government of Malaysia [2012] 6 MLJ 724.

In relation to unlawful interference with fundamental rights there are hundreds of applications
to the courts. Some of the prominent ones are: PP v Yee Kim Seng [1983] 1 MLJ 252; Che Ani
Itam v PP [1988] 1 MLJ 113; Tye Ten Phin v Menteri Hal Ehwal Dalam Negeri [1989] 2 CLJ 877;
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105; Yii Hung Siong v PP
[2005] 6 MLJ 432; Ooi Kean Thong v PP [2006] 3 MLJ 389; Muhammad Hilman Idham v Kerajaan
Malaysia [2011] 6 MLJ 507; Fathul Bari Mat Jahya v Majlis Agama Islam NS [2012] 4 MLJ 281;
Nik Noorhafizi Nik Ibrahim v PP [2013] 6 MLJ 660; Nik Nazmi Nik Ahmad v PP [2014] 4 MLJ 157;
Berjaya Books v Jabatan Agama Islam WP [2014] 1 MLJ 138; Mat Shuhaimi Shafiei v PP [2014] 2
MLJ 145; Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri [2014] 6
CLJ 541; PP v Azmi Sharom [2015] 6 MLJ 751; State Government of Negeri Sembilan v
Muhammad Juzaili Mohd Khamis [2015] 8 CLJ 975, [2015] 6 MLJ 736; PP v Yuneswaran Ramaraj
[2015] 9 CLJ 873; Pathmanathan Krishnan v Indira Gandhi Mutho [2016] 1 CLJ 911; ZI
Publications v Kerajaan Negeri Selangor [2016] 1 MLJ 153; Majlis Agama Islam WP v Victoria
Jayaseele Martin [2016] 2 MLJ 309; Maria Chin Abdullah lwn Pedakwa raya [2016] 9 MLJ 601; Y
B Khalid Abdul Samad v Majlis Agama Islam Selangor [2016] MLJU 338; and Khairuddin Abu
Hassan v Kerajaan Malaysia [2016] MLJU 990.

On violation of constitutional amendment procedure there are cases like The Government of
Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj
(1963) 29 MLJ 355 and Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741.

On exercise or abuse of emergency powers we have Teh Cheng Poh v PP [1979] 1 MLJ 50, 2 MLJ
238, [1980] AC 458 and Abdul Ghani Ali @ Ahmad v PP [2001] 3 MLJ 561.

On the Attorney-General’s exclusive power under Article 145 to commence prosecutions we


have a dozen or so cases including Subramaniam Gopal v PP [2010] 2 MLJ 525.

Despite the above cases, one can say regrettably, that 60 years after independence the
Constitution has not yet become the chart and compass, the sail and anchor of the nation’s
legal endeavours. Its imperatives have not become the aspirations of the people or the
institutions of the state.
 The federal Parliament and the State legislatures often enact laws that confer absolute
discretion on the executive and, in addition, exclude judicial review through ouster clauses.
 In the last two decades, laws relating to Islamic matters are regarded by politicians, policy
makers, the syariah establishment and many civil judges as NOT subject to constitutional
control and not amenable to the civil courts’ jurisdiction. A parallel, religious legal system
seems to be emerging though this was not the intention of the constitution-makers.
 A great deal of delegated legislation ignores constitutional limits.
 Most lawyers, perhaps due to unfamiliarity with constitutional jurisprudence, avoid raising
constitutional challenges in the courts.
 Barring some honourable exceptions, most judges avoid or evade constitutional issues and
convert issues of constitutional law into issues of administrative law.
 The area of non-justiciability is very wide.
 Constitutional safeguards are often made inapplicable because according to the courts, the
case is one of private law to which public law principles are not applicable.
 Despite the protests of constitutional lawyers, government policies and Circulars often
trump the Constitution. Many decisions are regarded as part of royal prerogatives, not
subject to judicial review.

2. FEDERAL LEGISLATION BY THE ELECTED PARLIAMENT


There are nearly one thousand federal statutes on record. They are called Acts of Parliament or
statutes. All are printed in the Government Gazette and are accessible without cost to anyone
who cares to obtain them. The Government claims no copyright to its legislation.

Interpretation Acts supply a guide to statutory interpretation. The relevant laws are the
Interpretation and General Clauses Ordinance 1948 applied for the interpretation of the
Constitution and the Interpretation Acts 1948 and 1967 (Act 388).

Though there is widespread codification, there is a great of overlapping legislation and


consolidation is an unmet need.

3. EMERGENCY ORDINANCES BY THE YANG DI-PERTUAN AGONG


The King, acting on advice, possesses the power to promulgate Emergency Ordinances having
the force of law (i) during an emergency and (ii) if both Houses are not in session concurrently.
The power of the King is co-terminus with that of Parliament.

4. FEDERAL DELEGATED (SUBSIDIARY) LEGISLATION


It exceeds parliamentary legislation by a ratio of 1:20. Regrettably it is not subject to much
parliamentary control. In many countries delegated legislation is statutorily made subject to
 Consultation with affected interests
 Laying procedures – laying in draft or laying in instrument; laying subject to affirmative
resolution or laying subject to negative resolution;
 Scrutiny committees of one or both Houses of Parliament; and
 Publication requirement.

Regrettably, in Malaysia, consultation and laying are very rare. Scrutiny committees are
unknown in Malaysian legislatures.

However, subsidiary legislation, both federal and state, is subject to judicial review on the
principles of ultra vires and unreasonableness.

5. BRITISH COMMERCIAL STATUTES

In the field of commercial law, British statutes at cut off dates may be applied throughout
Malaysia if there is no local legislation and if the British law is suitable to our circumstances.

6. PRE-MERDEKA LAWS

Article 162 specifically provides that all existing laws on Merdeka Day shall continue to be
applied until repealed. But any court applying them may apply them with such modification as
may be necessary to bring them into accord with the Constitution. “Modification” includes
amendment, adaptation and repeal.3

7. THIRTEEN STATE CONSTITUTIONS


Each of the 13 States have their own Constitutions which are required by Article 71 and the
Eighth Schedule to contain some “essential provisions” prescribed by the Federal Constitution.
These essential provisions are that the Ruler must act on advice; and there must be provisions
for an Executive Council and an elected legislature with powers and procedures for enacting
laws.

8. STATE ENACTMENTS
These Enactments can be made on any areas assigned to the State Legislature under Schedule
9, Lists II and III. The State Assemblies of Sabah and Sarawak have additional powers under Lists
IIA and IIIA.

9. STATE DELEGATED (SUBSIDIARY) LEGISLATION


State Enactments may delegate power to any state institution including local authorities and
religious officials and committees to enact subsidiary legislation.

3
Surinder Singh Kanda v Govt of Malaya [1962] 1 MLJ 169; Aminah v Supt of Prisons [1968] 1 MLJ 92; Assa Singh v
MB Johor [1979] 2 MLJ 30; Sagong Tasi v Kerajaan Selangor [2005] 6 MLJ 289.
10. BRITISH STATUTES OF GENERAL APPLICATION
Under the Civil Law Act 1956, section 5(1), English commercial law as it stood on 7 April 1956
applies in the nine former Malay states. Under section 5(2) which applies to Penang, Melaka,
Sabah and Sarawak, English commercial law at the date at which the matter has to be decided
applies.

Under section 3(1), statutes of general application on particular cut-off dates may apply in
Sabah and in Sarawak. For Sabah the date is December 1, 1951; for Sarawak the date is
December 12, 1949.

UNWRITTEN LEGAL SOURCES

11. BRITISH COMMON LAW AND EQUITY


The Constitution recognises common law as a source of law. Under the Civil Law Act 1956 the
term ‘common law’ means British common law and equity subject to (i) cut-off dates and (ii) a
local circumstances proviso. The cut off dates are 7 April 1956 in West Malaysia;
1 December 1951 in Sabah; and 12 December 1949 in Sarawak. These dates reflect the pre-
independence incorporation by the British of their legislation into the colonial territories of
Malaya, Sabah (North Borneo) and Sarawak.

Many other Malaysian statutes like the Contracts Act permit our courts to take note of
equitable considerations.

The Civil Law Act 1956 is subject to tremendous criticisms. First, some say that the umbilical
cord that bound us to Britain in 1957 is not necessary 60 years after the growth and
development of our own legal system. Second, it is improper to set different cut-off dates
(Sarawak 1949; Sabah 1951 and Malaya 1956) for our three different regions. Third, it is silly
that ancient and not contemporary English common law is applicable in Malaysia. English
common law has developed by leaps and bounds since the fifties. Fourth, why should England
have the monopoly of influencing our jurisprudence? In constitutional law e.g. Britain offers no
help due to its unwritten Constitution and Indian and Australian jurisprudence would be much
more relevant. For the above reasons, arguments are periodically raised that the Civil Law Act
should be amended or repealed and Malaysian courts should develop their own common law.
In many areas that is, without doubt, already taking place.

12. PRECEDENTS OF MALAYSIAN SUPERIOR COURTS


On the lines of the English legal system, Malaysia follows the doctrine of binding judicial
precedent.

The Federal Court: The decisions of Federal Court bind all other courts in the country. But as an
apex court, the Federal Court has the power to overrule its own previous decisions. In the
interest of certainty, this power is exercised sparingly. The Federal Court has the power to
overrule all other courts and this it does quite often.

Court of Appeal: The Court of Appeal is bound by the Federal Court but all other courts are
bound by the Court of Appeal. The Court of Appeal generally follows its own decisions but has
the power, without overruling it, “to depart” from its previous precedents.4 It can overrule the
High Courts.

High Courts: The two High Courts are bound by the Federal Court and the Court of Appeal but
all inferior courts and tribunals are bound by the High Courts. The High Courts generally follow
decisions of other High Courts but have the power, without overruling it, “to depart” from a
previous precedent of the High Court. It can overrule the inferior courts on appeal as well on
review.

Previous courts: It is noteworthy that the judicial decisions of superseded superior courts like
the Supreme Court, the former Federal Court and the Judicial Committee of the Privy Council
continue to have legal status and protection of the doctrine of binding judicial precedent.

The Special Court under Article 182: This court has exclusive jurisdiction to try all offences
committed by the Yang di-Pertuan Agong (YDPA) and the Rulers of the States. It also has
exclusive jurisdiction in all civil actions by or against the YDPA and the Rulers in their personal
capacity. It is not clear whether the doctrine of stare decisis applies to the Special Court. Under
Article 182(5), “the practice and procedure applicable in any proceedings in any inferior court,
any High Court and the Federal Court shall apply in any proceedings in the Special Court”.

Balance between rigidity and flexibility: Despite the belief that the doctrine of binding judicial
precedent stifles judicial creativity, the reality is that it achieves a fine balance between
certainty and flexibility.

4
Kerajaan Negeri Terengganu v Sr Syed Azman Syed Ahmad Nawawi [2013] 7 MLJ 52; (No. 2) [2013] 7 MLJ 145;
Govt of Sarawak v Chong Chieng Jen [2016] 5 CLJ 169; Utusan Melayu v Dato Sri DiRaja Hj Adnan Hj Yaakob [2016]
5 CLJ 857.
 Laying down hitherto unknown principles in novel cases which could not have been
foreseen (original precedents) is clearly creative.
 Extension of existing principles to new situations as in Dutton v Bognor Regis. “The
application of existing law to new circumstances can never be clearly distinguished from the
creation of a new rule of law.” (Cross).
 In overruling a previous decision. Judicial creativity is fully in play when a previous decision
is overruled.
 In distinguishing between ratio and obiter. Judicial creativity is again in play when a
hitherto binding rule contained in a precedent is denied the dignity of law by interpreting it
as obiter dictum. Such an interpretation is of considerable importance for it in effect,
unmakes law.
 Restricting the operation of a binding rule by declaring it to be too wide involves creativity.
 Rewriting the ratio (while only claiming to follow it) in the light of concurring judgments and
taking the “spirit” of the judgment in consideration in effect makes new law. Contrary to
what is generally believed, there is no such thing as a fixed ratio decidendi of a case for all
time to come. The principle of law for which a case is authority is determined in the light of
earlier and later cases so that the principle is always changing subtly.
 In distinguishing cases on facts for the purpose of applying or refusing to apply a previous
precedent the judge acts creatively.
 In the USA, India and Malaysia courts have adopted the doctrine of prospective overruling.
The decision whether to overrule a previous decision or invalidate a statutory enactment
prospectively or retrospectively is guided, not by the law, but by policy and expediency .

UNWRITTEN, NON-LEGAL SOURCES

13. THE SYARIAH


The syariah was and is an important part of the Malay identity. In the days of the British, the
courts often accepted and occasionally rejected Muslim law in deciding cases.5 The most
prominent cases involving Islamic law were In the Goods of Abdullah [1835] 2 Ky. Ec.8; Fatimah
& Ors v Logan [1871] 1 Ky. 255; Re Maria Huberdina Hertogh [1951] 17 MLJ 164; Koh Cheng
Seah Administrator of the Estate of Tan Hiok Nee Decd. V Syed Hassan [1930] 1 MC 180; Ramah
binti Taat v Laton binti Malim Sutan (1927) 6 FMSLR 128; Re Ismail Rentah, Decd., Haji Hussain
bin Singah v Liah binte Lerang [1940] 9 MLJ 98; In re Timah binti Abdullah Decd. The Official
Administrator, FMS v Magari Mohihiko [1941] 10 MLJ 51; Ainan bin Mahmud v Syed Abu Bakar
[1939] MLJ Rep. 163; Chulas and Kachee v Kolson binti Seydoo Malim (1867) Leic. 462; Anchom
binte Lampong v PP [1940] MLJ Rep. 18; In the Matter of Omar bin Shaik Salleh Shaik Salleh v

5
Refer to Salleh Buang, Malaysian Legal History: Cases & Materials, Dewan Bahasa dan Pustaka, 1993, pp. 37-46,
62-95.
Mariambee (1948) 14 MLJ 186; Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204; PP v D J
White @ Abdul Rahman [1940] MLJ Rep 170.

In the post-independence era, with the adoption of a written Constitution, the legal position of
Islamic law is that the principles of the syariah are not law per se under Article 160(2). But State
Assemblies are authorized by Schedule 9, List II Para 1 to enact laws on Islam (in 24 areas,
mostly of personal law) and on matters of Malay custom.

In the era between 1957 and 1988, despite the existence of syariah courts, , the civil courts
continued to interpret, apply or dismiss principles of Islamic law in cases before them: Nafisah v
Abdul Majid [1969] 2 MLJ 174 and 175; Martin v Umi Kelsom [1963] 29 MLJ 1; AG of Ceylon v
Reid [1965] 2 MLJ 34; Myriam v Mohamed Ariff [1971] 1 MLJ 265; Abdul Rahim v Abdul Haleem
[1983] 2 MLJ 78; and Re Dato Bentara Luar Dcd., Haji Yahya v Hassan [1982] 2 MLJ 264.

But this reception and adjudication of Islamic law in civil courts came to an end with the
constitutional amendment to Article 121 and the addition of Article 121(1A) to the effect that
the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the
Syariah courts”. Refer to Mansur bin Mat Tahir v Kadi Daerah Pendang Kedah [1989] 1 MLJ 106.

Since Mahathir Mohamad and Anwar Ibrahim’s Islamisation policy in the 80s, there has been a
steady expansion of the syariah in areas outside family law. Syariah authorities occasionally
exercise jurisdiction beyond the 24 areas assigned to them by Schedule 9 List II Para 1. In
addition, they violate the chapter on fundamental rights. Judicial review of such excess of
power is, however, rather rare.

Today there is talk of an “Islamic state”, “two parallel legal systems” and “one country with two
systems”. The states of Kelantan and Terengganu have even tried (but unsuccessfully) to
legislate hudud laws i.e. criminal laws with penalties prescribed in the Qur’an, Hadith and the
fiqh (jurisprudence) of early Muslim scholars.6

The legal system is facing intractable disputes between syariah authorities and some Muslims
on such issues as Muslim apostasy, cross dressing, freedom of speech, “deviationist teachings”
and Islamic education. Constitutional issues are often raised and more often than not rejected
by the superior courts.

6
The Syariah Criminal Code (II) Enactment 1993 of Kelantan sought to apply Islamic criminal law to all residents of
Kelantan including non-Muslims.
The steady expansion of Islamic laws and the widening jurisdiction of syariah authorities has
also brought them in painful disputes with non-Muslims over such issues as dissolution of a
non-Muslim marriage when one partner converts to Islam, conversion of the children of the
marriage into Islam without the consent of the non-converting spouse, and custody and
guardianship of the children. Syariah authorities are also flexing their muscles in such matters
as use of the term “Allah” by non-Muslims7, burials of non-Muslims who were suspected by the
syariah authorities to have converted to Islam before their death.

Islamic law is in resurgence and is often in direct conflict with the constitutional grundnorm.

14. MALAY ADAT (CUSTOM)


Before the arrival of the British in 1786, custom was the dominant source of law in Malaya. For
the Malay community, custom referred to the composite, indigenous Malay adat enriched by
Hindu and Buddhist elements and overlaid with principles of the Syafie school of Islamic law.
Though Malay adat (custom) and the Syariah (Islamic law) are distinct, the Malays often see
them as synonymous. That is why Malay custom is enforced in syariah courts! Unlike in Sabah
and Sarawak, there are no separate adat courts in the peninsula for Malay custom.

As colonialism took root, common law became the dominant law of Malaya and Malay adat and
Islam were relegated to personal matters, and that too if not repugnant to British notions of
natural justice, equity and good conscience. In Sahrip v Mitchell (1877) Leic Reports 466, a land
tenure case, the Malay custom of tithe or one-tenth of the total produce was accepted as
reasonable. In Jainab bt Semah v Mansor bin Iman [1951] 17 MLJ 62, the Malay custom of
adoption in Pahang was recognised. But in Mong binti Haji Abdullah v Daing Mokkah Daing
Palamai (1935) 4 MLJ 147, - a breach of promise to marry case – the court refused to apply
Muslim law as that would lead to oppressive results.8 See also Sahrip v Mitchell (1870) Leic.
466; Jainah v Mansor (1915) 17 MLJ 62.9

In post-independence Malaya Malay customs have constitutional recognition in several articles


of the Constitution including Article 150(6A), 160(2) and Schedule 9 List II, Para 1. However,
there is no carte blanche recognition of customary law. Under Article 160(2) ‘law’ includes only
those customs and usages having the force of law. This means that customs are not law per se.
They need the kiss of life from a statute or a judicial precedent. After independence, the role of
Islamic law and Malay adat has been gradually enhanced and given statutory basis in the
Syariah Enactments of all the states and in some other laws. Custom is occasionally elevated to

7
Titular Roman Catholic Archbishop v Menteri [2014] 4 MLJ 765
8
Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, pp. 151-155
9
Salleh Buang, Malaysian Legal History: Cases & Materials, Dewan Bahasa dan Pustaka, 1993, pp. 29-36, 56-61.
the status of law by judicial recognition if the custom meets the criteria of morality,
reasonableness and justice in the opinion of the court.10 What standards does the court apply?
It is doubtful that 60 years after Merdeka English standards of reasonableness will apply lock,
stock and barrel to customs in Malay society. There is recognition in Khoo Hooi Leong v Khoo
Chong Yeok [1930] AC 346 that English law must be applied with modification to alien races.
15. NATIVE LAW IN SABAH & SARAWAK
In Sabah and Sarawak, native law and custom have constitutional and statutory recognition as
law. For example, the Sarawak Native Court Ordinance 1992 defines customary law as “customs
or body of customs to which the law of Sarawak gives effect”. There are many significant cases
of native rights to land being litigated in the courts. Decisions have gone both ways, in favour of
and against the natives .11

Native law in family and personal matters is enforced by a hierarchy of Native Courts. But there
is no dearth of cases before 1963 and after 1963 when the High Court exercised jurisdiction and
gave important decisions on matters of native law: Abdul Latiff Avarathar v Lily Muda [1982] 1
MLJ 72; Chan Bee Neo v Ee Siok Choo [1947] SCR 1; Kho Leng Guan v Kho Eng Guan [1936] SCR
60; S M Mahadir bin Datu Tuanku Mohamad v Chee (f) [1941] SCR 96; Serujie & Hanipah v
Sanah binti Haji Amin [1953] SCR 40; Liu Kui Tze v Lee Shak Lian (f) [1953] SCR 85.12 The review
of native courts’ decisions by the High Court is in contrast with the independence and
autonomy of syariah courts under Article 121(1A).

16. CHINESE AND INDIAN CUSTOMS


Malay adat is holding its ground in family and personal law matters. But non-Muslim customs
are in decline and have been replaced by secular Codes in independent Malaya. Historically,
however, many Chinese and Indian customs were recognized e.g. polygamous Chinese
marriages and legitimization of an illegitimate son by a subsequent marriage were recognized in
the Matter of Choo Eng Choon, Deceased [1911] 12 SSLR 120. Chinese customs were recognized
in the distribution of intestate estates: Ong Cheng Neo v Yap Kwan Seng [1897] 1 SSLR Suppl 1.
Customary Hindu money-lending contracts by the Chettiar community have been recognized by
the courts. But the Chinese custom of legitimization of a natural but illegitimate son was
rejected in Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346 on the ground of morality.13

10
Roberts @ Kamarulzaman v Ummi Kalthom [1963] 1 MLJ 163
11
D G of Environment v Kajing Tubek [1997] 3 MLJ 23; Director of Forests Sarawak v T R Sandah Ak Tabau [2017] 3
CLJ 1; Madeli bin Salleh [2008] 2 MLJ 677; Andawan Ansapi v PP [2011]; Agi Anak Bungkong v Ladang Sawit [2010]
1 LNS 114; Racha ak Urud Peter Racha Urud v Ravenscourt Sdn Bhd [2014] 3 MLJ 661; T R Hillary Chukan ak Briak v
The Enrich Timber Sdn Bhd [ 2015] MLJU 2007; Nor Anak Nyawai v Borneo Plantation [2001] 2 CLJ 769.
12
Salleh Buang, Malaysian Legal History: Cases & Materials, Dewan Bahasa dan Pustaka, 1993, pp 115-126.
13
Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, pp. 151-155.
17. CONSTITUTIONAL CONVENTIONS
In the area of constitutional law, hundreds of constitutional customs (called conventions) have
developed over the years. For example, there is a daily Question Time in Parliament. During a
dissolution of the Dewan Rakyat, the Prime Minister who advised dissolution stays in office in a
caretaker capacity till the new PM and government are inducted into office after the election.

As with all customs, these constitutional conventions are not laws and not enforceable in a
court of law.14 They are the political morality of the day. They are rules of political practice that
are regarded as binding by those to whom they apply but no legal sanction attaches to their
disobedience.15 However, conventions can influence judicial decisions in two ways: first, a court
may use a well-established convention as an aid to interpretation of statutory law.16 Secondly,
in some circumstances a court may adopt a constitutional convention as part of his judicial
reasoning, thereby elevating the convention to the status of common law.17

18. INTERNATIONAL LAW


In the definition of ‘law’ in Article 160(2), international law is conspicuously left out. This means
that norms of international law and practice are not part of our corpus juris unless they are
posited into law. This can be done in three ways: First, by statutory incorporation into a local
statute. An example is our Human Rights Commission Act which incorporates the Universal
Declaration of Human Rights into our law subject to the Constitution. Second, international law
can be admitted to our shores by our judges by treating it as part of international “custom or
usage” which the judges have power to recognize under Article 160(2). Third, it is noteworthy
that in the definitional clause in Article 160, the words of the Constitution are “law includes”
(and not “law means”). The definition of law is inclusive, not exclusive. The courts have some
discretion. Fourth, the courts can adopt a constitutional presumption that unless Parliament
explicitly excludes international law, the norms of all international laws and treaties ratified by
the government must be grafted on to every Malaysian statute even if Parliament has not
adopted international law into local statutes. This is what happened in Noor Fadilla Ahmad
Saikin [2012] 1 MLJ 832 and Lai Meng v Toh Chew Lian [2012] 8 MLJ 180.18 Such a presumption
is justified because in this age of globalization, our government must be seen as committed to
harmonising its practices and laws with the law of nations.

14
Govt of Kelantan v Govt of the Federation of Malaysia & Tunku Abdul Rahman Putra Al-Haj (1963) MLJ 355; Re
Amendment of the Constitution of Canada (Nos 1, 2 and 3) 1982 125 DLR 3d 1.
15
Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia, pp. 101-110.
16
Regina v Secretary ex parte Hosenball [1977] 1 WLR 766; Liversidge v Anderson [1942] AC 206; Robinson v
Ministry of Town & Country Planning [1947] KB.
17
Tun Datu Haji Mustapha v Tun Datuk Haji Mohamad Adnan Robert [1986] 2 MLJ 420.
18
But for contrary approach see Beatrice Fernandez v Sistem Penerbangan Malaysia [2004] 4 CLJ 403
19. QUASI-LEGISLATION
Quasi-legislation by way of Administrative Circulars, Notifications, Instructions, Schemes and
Directives do not have the status of law unless framed under the authority of a parent law. In
actual practice, these administrative directives are issued regularly and are regarded by the civil
service as absolutely binding. Disregard of them can disqualify a citizen from applying for a job,
licence, scholarship, loan, passport or permit. Disregard of Government Circulars by a public
servant can expose him to internal proceedings for indiscipline though no court case for breach
of law can be initiated if the Circular has no legal status and is mere administrative in nature.
For a learned judicial decision on the distinction between administrative circulars and
subsidiary legislation see Teh Guat Hong v Perbadanan Tabung Pendidikan Tinggi Nasional
[2015] MLJU 213.

Sources and their hierarchy: A difficult question about the sources of law is whether the 18
multiple sources outlined above exist in a clear hierarchy or as competing streams of law?
Theory supports the idea of a hierarchy with the Federal Constitution at the apex. In reality
however, the situation is exceedingly complex for many reasons. First, the Constitution is what
the judges say it is. For example, Article 5(3) mandates that every arrestee “shall be allowed to
consult and be defended by a legal practitioner of his choice”. But in Ooi Ah Phua v Officer
Incharge Kedah/Perlis [1975] 1 MLJ 93 the court held that the right can be exercised only after
police have completed their investigation. The glittering generalities of Article 5(3) have to be
read in the light of judicial precedents which, functionally speaking, become integral parts of
the Constitution. Second, the Constitution is often read in the light of other sources of law i.e.
legislation, judicial precedents, customs, principles of the syariah and even norms of
international practice. A broad, holistic view of the law requires us to see the law as a
coordinate whole rather than as separate, hierarchical set of rules.